Friday, May 12, 2017

Media Chronology in France

Media Chronology in France

Media chronology (also referred to as statutory windows) is an issue that is considered crucial by the French film and television industry.

The sequence of releasing was initially determined by a Decree until 2000, when a modification was introduced, providing the possibility for the different stakeholders to agree on the terms. After several attempts, an agreement was reached in 2009 by the associations representing the different stakeholders: producers, distributors, theaters, and the broadcasters. As it represented a consensus at that time, this agreement was extended by Ministerial order and made compulsory for any French company. In substance, it provides that a film exploited in theaters cannot be exploited through physical videos and pay VoD before 4 months, pay TV before 10 months, free TV before 22 months and SVOD before 36 months from said initial theatrical release. This agreement has been complied with even by the services established in foreign countries (UK, Luxembourg, Netherlands, Switzerland, etc.) addressing a French audience.
The development of VoD and SVoD and the difficulty to finance films that are not pre-bought by pay TV have led certain stakeholders to look for a modification of the regulation. The new EU Portability regulation and potential changes to Country of Origin principle for broadcasters being discussed in Brussels also lead to consideration of how the French window system should be reviewed.
There are discussions going on and propositions made by pay TV and independent film producers associations, as well as by the public agency, Centre National du Cinéma et de l'Image Animée (CNC).
The CNC drafted a proposal to modify the current ministerial order governing media chronology. It based its proposal on two main assessments:
- Industry actors are favorable to a general shortening of films’ distribution/broadcasting windows, given the acceleration of broadcasting cycles abroad, and the fact that audiences’ expectations have changed.
- Broader flexibility on media chronology windows has also been requested, as well as that broadcasters’ investments be taken into account, on a film by film basis.
On that basis, the CNC first suggested that a new window be created for electronic sell-through (EST), of 3 or 3.5 months after theatrical release (extending the window to 4.5 months for VoD). Second, the CNC suggested shortening the delay for certain windows. The Pay TV window could therefore start 8 months after theatrical release for Pay TV services having entered into an agreement with the producers associations (but these services are fighting to obtain a reduction to 6 months).

Finally, the CNC proposed to implement a new “sliding windows” principle, according to which windows for a specific film could be shortened depending on the amount invested before production by broadcasters. Therefore, a separate window would be created for “virtuous” SVOD services (i.e. services that voluntarily decide to invest in content creation and to favor diversity), for which the window’s start date would be reduced to 24 months after theatrical release if the film has not been financed by a Pay TV or even 18 months if it has not been financed by a TV service.
However, at this stage, no agreement has been made as each category of exhibitors /distributors/ Broadcasters is trying to obtain an improvement but fighting against the requests of the other categories.

The selection for the film festival in Cannes of two films acquired and financed by Netflix, Okja, a South-Korean/American movie and The Meyerovitz Stories, an American movie, has led to contradictory reactions from the French industry. The majority of the stakeholders consider that the selection should be limited to films which are primarily exploited theatrically while certain producers consider that this type of exploitation allows financing fragile films and allows them to access an unexpected audience.

The professional agreement on media chronology provides that is shall not be modified unless agreed by all signatories, as long as the ministerial order is enforceable. The ministerial order will expire in July 2019. If no agreement is made by that date, no compulsory chronology will apply and the parties will be free to contractually determine the windows. It is therefore likely that despite their disagreement the professional associations will come to an agreement after nomination of a new minister.

Eric Lauvaux, Partner and Attorney at NomoS - société d'avocats in Paris has expertise in French Licensing, Media & Entertainment, Intellectual Property and the Internet. Please contact him at ELAUVAUX@nomosparis.com with any questions or for additional information on statutory windows in France for your projects.

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